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United States v. Smiley, 05-4844 (2006)

Court: Court of Appeals for the Fourth Circuit Number: 05-4844 Visitors: 25
Filed: Aug. 14, 2006
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4844 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus MONTRELL SMILEY, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. William M. Nickerson, Senior District Judge. (CR-05-80) Submitted: June 30, 2006 Decided: August 14, 2006 Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. James Wyda, Federal Public Defe
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                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4844



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MONTRELL SMILEY,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (CR-05-80)


Submitted:   June 30, 2006                 Decided:   August 14, 2006


Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Matthew G. Kaiser, Assistant
Federal Public Defender, Paresh S. Patel, Staff Attorney,
Greenbelt, Maryland, for Appellant.    Rod J. Rosenstein, United
States Attorney, Michael C. Hanlon, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Montrell Smiley appeals his 120-month sentence imposed

after he pled guilty to one count of bank robbery, in violation of

18 U.S.C. § 2113(a), (f) (2000), and one count of interference with

interstate commerce by bank robbery, in violation of 18 U.S.C.

§ 1951 (2000).       For the reasons that follow, we affirm.

           Smiley asserts that his sentence, which is fifteen months

above the recommended advisory guideline range of 84 to 105 months’

imprisonment, is both procedurally and substantively unreasonable.

Smiley   argues      that   his   sentence     is    procedurally    unreasonable

because the district court did not adequately consider the factors

under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006) or the

arguments of defense counsel.          Smiley argues that his sentence is

substantively unreasonable because the district court found no

facts, other than those considered by the sentencing guidelines,

which justified Smiley’s above-the-guidelines sentence.                   Smiley’s

arguments are unavailing.

           A    post-Booker*       sentence         may   be   unreasonable     for

procedural     and     substantive     reasons.           “A   sentence   may    be

procedurally unreasonable, for example, if the district court

provides an inadequate statement of reasons . . . .                 A sentence may

be substantively unreasonable if the court relies on an improper

factor   or    rejects      policies   articulated        by   Congress    or   the


     *
      United States v. Booker, 
543 U.S. 220
(2005).

                                       - 2 -
Sentencing Commission."       United States v. Moreland, 
437 F.3d 424
,

434 (4th Cir.) (citations omitted), cert. denied, 
126 S. Ct. 2054
(2006).    While a district court must consider the various factors

in § 3553(a) and explain its sentence, it need not “robotically

tick through § 3553(a)'s every subsection" or “explicitly discuss

every § 3553(a) factor on the record."           United States v. Johnson,

445 F.3d 339
, 345 (4th Cir. 2006).            Even if the sentence exceeds

the   advisory    guideline   range,     it    will    generally   be    deemed

reasonable “if the reasons justifying the variance are tied to

§ 3553(a) and are plausible."      
Moreland, 437 F.3d at 434
.

            We find the district court’s explanations of its reasons

for sentencing Smiley satisfied these standards, and Smiley’s

sentence   was    therefore   reasonable.        The   court   cited    several

§ 3553(a) factors in concluding that the guideline range was

inadequate.      The court reviewed “the nature and circumstances of

the   offense”    and   the   “history     and    characteristics       of    the

defendant,” § 3553(a)(1), observing that Smiley served nine years

in prison for another string of robberies and had been out of jail

only eight months when he committed the instant offenses.                    With

respect to the need for the sentence imposed, the court went on to

consider the seriousness of the offense and the goals to promote

respect for the law, to deter criminal conduct, and to protect the

public.    See § 3553(a)(2)(A),(B).           The court concluded that the




                                   - 3 -
combination of Smiley’s past criminal history, the current offenses

and his drug addiction supported a higher sentence.

           We conclude that the variance sentence imposed by the

district court was “selected pursuant to a reasoned process in

accordance with the law.”    United States v. Green, 
436 F.3d 449
,

457 (4th Cir. 2006), cert. denied, 
126 S. Ct. 2309
(2006).        We also

find that the extent of the variance, which was the minimum

sentence the district court found proper to impose under the

circumstances, was reasonable. See 
Moreland, 437 F.3d at 436
(“The

second question we must address is whether the extent of the

variance   was   reasonable.”).    We     therefore   conclude   that   the

district court acted reasonably in imposing this variance sentence.

           Accordingly, we affirm.      We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.



                                                                 AFFIRMED




                                  - 4 -

Source:  CourtListener

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